Henneman v. City of Toledo

• Decision Date: 09 March 1988
• Docket Number: No. 87-335,87-335
• Citation: 35 Ohio St.3d 241,520 N.E.2d 207
• Parties: HENNEMAN, Appellee, v. CITY OF TOLEDO et al., Appellants.
• Court: Ohio Supreme Court

Page 241

35 Ohio St.3d 241

520 N.E.2d 207

HENNEMAN, Appellee, v. CITY OF TOLEDO et al., Appellants.

No. 87-335.

Supreme Court of Ohio.

March 9, 1988.

Syllabus by the Court

Records and information compiled by an internal affairs division of a police department are subject to discovery in civil litigation arising out of alleged police misconduct if, upon an in camera inspection, the trial court determines that the requesting party's need for the material outweighs the public interest in the confidentiality of such information.

On July 7, 1982, plaintiff-appellee, Mary Ann Henneman, filed the instant action against appellant, J.P. Smith, a police officer employed by appellant city of Toledo, and against the city itself. Appellee alleged multiple claims, including a deprivation of various federally protected civil rights and assault and battery. These claims stemmed from an incident on January 12, 1982 in which Officer Smith allegedly used excessive force in effecting appellee's arrest.

During the course of discovery, appellee propounded a number of interrogatories and requests for production of documents, to which appellants, for various reasons, declined to respond. Appellee moved for orders compelling appellants to respond. Appellants countered by moving for protective orders, contending, inter alia, that a number of the discovery requests called for privileged information. Specifically, appellants alleged that any information compiled by or on behalf of the Internal Affairs Department of the Toledo Division of Police is confidential, privileged, and not subject to discovery.

The trial court granted appellants' motions in substantial part and issued protective orders regarding the vast majority of those interrogatories and requests for production to which appellants had objected. With respect to those discovery requests which called for information or documents from the Internal Affairs Department, the trial court ruled that "the confidentiality of these records must be preserved due to the chilling effect that public exposure may have on the ability of the Internal Affairs to gather the information required. To even order an in camera inspection would imply that the court may pick and choose information to be exposed, which would have just as much [of] a chilling effect. * * * "

The case proceeded to trial by jury. At the close of appellee's evidence, and again before the case was submitted to the jury, appellants moved for a directed verdict. This motion was granted with regard to all claims except the assault and battery claims against both appellants and the actions asserted against appellant Smith under Section 1983, Title 42, U.S.Code. The jury returned a verdict in favor of appellants.

The court of appeals reversed in part and affirmed in part, and remanded to the trial court for further proceedings. The appellate court held that the trial court erred in its ruling that any information or records pertaining to the investigation conducted by internal affairs are privileged and not subject to discovery. The appellate court reversed the trial court's orders protecting this information from disclosure, and remanded to the trial court for a determination of whether a qualified privilege exists under the test adopted in the federal decisions, particularly Frankenhauser v. Rizzo (E.D.Pa.1973), 59 F.R.D. 339. As to the trial court's protective orders suppressing the remaining interrogatories and requests for production on other grounds, the court of appeals reversed the great majority of those orders, emphasizing that much of the information requested was relevant, discoverable and within the knowledge of appellants.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

R. Michael Frank and Charles Stupsker, Toledo, for appellee.

Sheldon M. Rosen, Director of Law, and Geoffrey H. Davis, Toledo, for appellants.

Gallon, Kalniz & Iorio Co., L.P.A., Ted Iorio and Christine A. Reardon, Toledo, urging reversal for amicus curiae, Toledo Police Patrolmen's Ass'n.

DOUGLAS, Justice.

The principal question posed by this appeal is whether information and records compiled by a police department pursuant to its internal investigation of alleged police misconduct are subject to an executive privilege, either qualified or absolute, protecting such information and records from the normal discovery requirements of civil litigation. We hold that such evidence must be disclosed upon a proper discovery request if, pursuant to an in camera inspection, the trial judge determines that the public interest in the confidentiality of such information is outweighed by the litigant's specific need for the evidence.

Where a particular claim is based on the United States Constitution or federal statutes, federal law controls on the question of evidentiary privilege. Kerr v. U.S. Dist. Court for Northern Dist. of Cal. (C.A. 9, 1975), 511 F.2d 192, 197. Conversely, where the relief sought relies upon Ohio law, the most appropriate source of applicable legal principles would be the law of privilege as it exists in this state. See Evid.R. 501. Since appellee's complaint contains both federal and state claims, we must look to both sources of authority, so that the relevant law may be applied to each claim.

The federal cases are clear. The rule of absolute privilege for internal affairs information adopted in Kott v. Perini (N.D.Ohio 1968), 283 F.Supp. 1, upon which the trial court apparently relied, has been rejected overwhelmingly in subsequent decisions. ¹ The leading case appears to be Frankenhauser v. Rizzo (E.D.Pa.1973), 59 F.R.D. 339. In Frankenhauser, the plaintiffs brought a civil rights action alleging police misconduct in the death of a man shot by police officers. The question before the Frankenhauser court was whether the plaintiffs had the right to seek discovery of relevant police investigative records, including internal reports of statements made by members of the defendant police department regarding the incident. The court rejected the defendants' claim of executive privilege, ruling that the documents requested are not absolutely protected from disclosure under these circumstances. In so holding, the Frankenhauser court discounted defendants' argument that compelled disclosure of such information will have a chilling effect on the department's ability to pursue its investigations and will impede candid evaluation of the conduct of its members. Id. at 342. The court reasoned that such a view fails to allow for the willingness of the police and of the public in general to cooperate fully with law enforcement officials. Id. at 344. However, the court recognized that the confidentiality of such information often serves a legitimate public interest, particularly in an ongoing criminal investigation:

" * * * [W]hen executive privilege is asserted, the court must balance the public interest in the confidentiality of governmental information against the needs of a litigant to obtain data, not otherwise available to him, with which to pursue a non-frivolous cause of action. Needless to say, the balancing task will often be difficult and the ingredients of the test will vary from case to case. In the context of discovery of police investigation files in a civil rights case, however, at least the following considerations should be examined: (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking the discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff's suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance of the information sought to the plaintiff's case." Id. at 344.

In camera inspection of the documents by the trial judge is the most appropriate method of dealing with claims of executive privilege. Kerr v. U.S. Dist. Court for Northern Dist. of Cal. (1976), 426 U.S. 394, 406, 96 S.Ct. 2119, 2125-26, 48 L.Ed.2d 725. By conducting such an inspection in chambers away from the jury and without the presence or participation of counsel for either party, the trial judge may make the necessary determination without compromising the confidentiality of any information he finds to be privileged. Upon such inspection in light of the factors outlined in Frankenhauser, and any other factors deemed relevant by the court, information found to be discoverable may then be disclosed to the requesting party on the condition that access to the materials be limited to the requesting party's counsel and persons employed by counsel in connection with the case. Urseth v. Dayton (S.D.Ohio 1986), 110 F.R.D. 245, 257. Any records requested by the plaintiff which the trial judge deems to be non-discoverable under the Frankenhauser test will then be sealed and made part of the record, so that an appellate court faced with the question may determine whether the trial court abused its discretion in withholding such records.

The Frankenhauser rule of qualified privilege for internal affairs records and files has been adopted by the vast majority of those federal courts presented with the question. ² Thus, with regard to appellee's federal claims, the trial court erred in applying an absolute privilege to such...